Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014

Industrial Relations Commission New South Wales Medium Neutral Citation: Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 Hearing dates: 4, 14 and 15 December 2020 Date of orders: 23 February 2021 Decision date: 23 February 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Orders: 1. the appeal is allowed; 2. the decision of the respondent to terminate Mr Eastwood's employment is set aside; 3. the respondent is to restore Mr Eastwood to employment, in the classification of First Class Correctional Officer 1st year under the Crown Employees (Correctional Officers, Department of Communities and Justice – Corrective Services NSW) Award; 4. Order 2 takes effect from Monday, 15 March 2021; and 5. Mr Eastwood's service is to be taken as not having been broken by virtue of his dismissal, but the period between 19 May 2020 and his re-employment pursuant to Order 2 will not count as service. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – Dismissal – racist comments in the workplace – swearing at a subordinate – security breach – findings of misconduct – other allegations made out, but not misconduct – consideration of culture and behaviours at the workplace generally – consideration of mitigating factors – long and unblemished service history –conduct, while serious and offensive, did not warrant termination – alternative disciplinary action imposed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Government Sector Employment Act 2013 (NSW) s 69 Industrial Relations Act 1996 (NSW) Ch 2 Pt 7, ss 98, 100C Public Sector Employment and Management Act 2002 (NSW) s 46 Work Health and Safety Act 2011 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60 Corbeski v BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Drury v BHP Refractories Pty Ltd (1995) 62 IR 467 Farley v Lums (1917) 19 WALR 117 Jupiter General Insurance Co., Ltd v Ardeshir Bomanji Shroff [1937] 3 All ER 67 Maritime Services Board v Murray (1993) 52 IR 455 Marroun v State Transit Authority [2017] NSWCA 273 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 North v Television Corporation Ltd (1976) 11 ALR 599 Torres v Commissioner of Police [2017] NSWIRComm 1001 Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited, trading as TNT Express [2002] NSWIRComm 46 Category: Principal judgment Parties: Scott Eastwood (Appellant) Industrial Relations Secretary (Respondent) Representation: Counsel: P Lowson (Appellant) A Douglas-Baker (Respondent) Solicitors: Public Service Association of NSW (Appellant) Professional Standards Branch, Corrective Services NSW (Respondent) File Number(s): 2020/149832 Publication restriction: No